N.L.R.B. v. Carolina Food Processors, Inc.

Decision Date22 April 1996
Docket NumberNo. 95-1678,95-1678
Parties152 L.R.R.M. (BNA) 2015, 131 Lab.Cas. P 11,569 NATIONAL LABOR RELATIONS BOARD, Petitioner-Appellee, v. CAROLINA FOOD PROCESSORS, INCORPORATED, Respondent-Appellant. United Food And Commercial Workers International Union and Local 204, Amicus Curiae.
CourtU.S. Court of Appeals — Fourth Circuit

Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. Franklin T. Dupree, Jr., Senior District Judge. (CA-94-137-D, 11-CA-15871).

ARGUED: James Edward Gates, Maupin, Taylor, Ellis & Adams, P.A., Raleigh, North Carolina, for Appellant. Paul Alton Ades, National Labor Relations Board, Washington, D.C., for Appellee. Jonathan Ross Harkavy, Patterson, Harkavy & Lawrence, Greensboro, North Carolina, for Amicus Curiae. ON BRIEF: Robert A. Valois, William P. Barrett, Maupin, Taylor, Ellis & Adams, P.A., Raleigh, North Carolina, for Appellant. Frederick L. Feinstein, General Counsel, Linda Sher, Acting Associate General Counsel, Margery E. Lieber, Assistant General Counsel for Special Litigation, Eric G. Moskowitz, Deputy Assistant General Counsel, National Labor Relations Board, Washington, D.C, for Appellee. Michael G. Okun, Patterson, Harkavy & Lawrence, Greensboro, North Carolina, for Amicus Curiae.

Before HAMILTON, WILLIAMS, and MICHAEL, Circuit Judges.

Affirmed by published opinion. Judge WILLIAMS wrote the opinion, in which Judge HAMILTON and Judge MICHAEL joined.

OPINION

WILLIAMS, Circuit Judge:

Carolina Food Processors, Incorporated appeals an order of the district court enforcing a subpoena duces tecum and subpoena ad testificandum issued by the National Labor Relations Board (the Board). Carolina Food asserts that the subpoenas are unenforceable because the Board failed to provide a hearing for the return of the subpoenas and because the subpoenas constitute impermissible pretrial discovery, were issued in violation of Carolina Food's due process rights, and are impermissibly vague, overbroad, and unduly burdensome. Finding these assertions to be without merit, we affirm.

I.

The present dispute arises from an unsuccessful attempt by the United Food and Commercial Workers Union, Local 204, AFL-CIO (the Union) to unionize Carolina Food's hog slaughtering and processing plant in Tar Heel, North Carolina. On July 8, 1994, the Union filed a petition for a representation election, designating a bargaining unit that included "[a]ll regular full-time and part-time production and maintenance employees," but excluded "Office clerical employees, Quality Control Employees, and all Supervisors, Guards and Professional employees." (J.A. at 4.) Carolina Food and the Union later entered a stipulated election agreement that defined the bargaining unit in the same way as the petition, except that quality-control employees were not specifically excluded. The Union subsequently lost the election.

In response to its election loss, the Union filed charges with the Board alleging unfair labor practices by Carolina Food. In its fourth amended charge, the Union asserted that a majority of bargaining-unit employees had signed union authorization cards prior to the election and that Carolina Food had engaged in unfair labor practices for the purpose of eliminating the Union's majority. The Union urged a Gissel bargaining order 1 as the appropriate remedy for the violations. In support of its allegation that it enjoyed the support of a majority of bargaining-unit employees prior to the election, the Union submitted to the Board the signed union authorization cards.

As part of its investigation into the Union's charges, the Board issued a subpoena duces tecum and a subpoena ad testificandum to Carolina Food seeking, inter alia, payroll records for the period of March 7, 1994 through August 25, 1994 showing the names of all bargaining-unit employees, their dates of hire or termination if hired, terminated, or both during the relevant period, and a copy of each identified employee's W-4 and/or I-9 form. The Board sought this information, in part, for the purpose of verifying employees' signatures on the union authorization cards.

Carolina Food refused to comply with the subpoenas, instead petitioning the Board to revoke them. The Board denied the petition for revocation and, in light of Carolina Food's continued refusal to produce the subpoenaed documents, sought an order from the district court directing Carolina Food to obey the subpoenas. See 29 U.S.C.A. § 161(2) (West 1978). After modifying the subpoena duces tecum to allow Carolina Food to redact extraneous information, the district court entered an order enforcing the subpoenas. Carolina Food now appeals.

II.

We begin by noting the very limited nature of our review in this case. The district court should enforce the Board's subpoena if the information sought is relevant to an investigation being conducted by the Board and is described with sufficient particularity. See NLRB v. G.H.R. Energy Corp., 707 F.2d 110, 113 (5th Cir.1982); accord EEOC v. City of Norfolk Police Dep't, 45 F.3d 80, 82 (4th Cir.1995) (noting that district court's review of administrative subpoena is limited to determining whether the agency is authorized to conduct the investigation, whether the agency "has complied with statutory requirements of due process," and whether the information sought is relevant). 2 We, in turn, review the district court's decision to enforce the subpoena for abuse of discretion; we may reverse the district court's enforcement order "only in the most extraordinary of circumstances." G.H.R. Energy Corp., 707 F.2d at 113 (footnote omitted).

With these principles in mind, we turn to an examination of the Board's subpoena power. Section 161 of Title 29 provides in pertinent part:

For the purpose of all hearings and investigations, which, in the opinion of the Board, are necessary and proper for the exercise of the powers vested in it by sections 159 and 160 of this title--

(1) The Board, or its duly authorized agents or agencies, shall at all reasonable times have access to, for the purpose of examination, and the right to copy any evidence of any person being investigated or proceeded against that relates to any matter under investigation or in question. The Board, or any member thereof, shall upon application of any party to such proceedings, forthwith issue to such party subpenas [sic] requiring the attendance and testimony of witnesses or the production of any evidence in such proceeding or investigation requested in such application.... Any member of the Board, or any agent or agency designated by the Board for such purposes, may administer oaths and affirmations, examine witnesses, and receive evidence. Such attendance of witnesses and the production of such evidence may be required from any place in the United States or any Territory or possession thereof, at any designated place of hearing.

We have previously noted that, in issuing a subpoena pursuant to § 161(1), the Board's powers are "analogous to [those of] the Grand Jury. Its power to subpoena is limited only by the requirement that the information sought must be relevant to the inquiry." Link v. NLRB, 330 F.2d 437, 440 (4th Cir.1964) (internal quotation marks omitted).

Carolina Food does not dispute that the information sought by the Board is relevant to the Board's investigation and acknowledges that it must eventually turn over the subpoenaed documents. Carolina Food asserts, however, that the subpoenas are unenforceable for four reasons: (1) the Board has not provided for a hearing for the production of the subpoenaed documents, as it is required to do by 29 U.S.C.A. § 161(1); (2) the subpoenas were issued not for legitimate investigatory purposes, but rather as a means of conducting pretrial discovery; (3) the subpoenas were issued in violation of Carolina Food's right to procedural and substantive due process; and (4) the subpoenas are impermissibly vague, overbroad, and unduly burdensome. We address these challenges in turn.

A.

Carolina Food first asserts that the subpoenas are unenforceable because the Board did not provide for a hearing for the return of the subpoenaed documents. As support for this proposition, Carolina Food relies on the final sentence of § 161(1), providing that the Board "may ... require[ ]" the production of evidence "at any designated place of hearing," and Judge Major's dissenting opinion in NLRB v. Barrett Co., 120 F.2d 583, 587 (7th Cir.1941), arguing that the Board does not have the authority to conduct an investigation without first issuing a complaint and scheduling a hearing. Judge Major noted that the Board's power to issue subpoenas under § 161(1) is expressly limited to the powers granted to the Board in 29 U.S.C.A. §§ 159, 160 (West 1973 & Supp.1995), and he reasoned that the Board could not conduct an investigation without first scheduling a hearing because § 159(c) provides that "[i]n any such investigation, the Board shall provide for an appropriate hearing upon due notice." See Barrett Co., 120 F.2d at 587 (Major, J., dissenting) (internal quotation marks omitted). Judge Major further argued that the hearing requirement found in § 159(c) was bolstered by the final sentence of § 161(1). Id.

We decline Carolina Food's invitation to accept Judge Major's reasoning. First, Judge Major relied on a version of § 159(c) that has since been amended. That section now provides that "the Board shall investigate ... [a] petition [alleging unfair labor practices] and if it has reasonable cause to believe that a question of representation affecting interstate commerce exists shall provide for an appropriate hearing upon due notice." 29 U.S.C.A. § 159(c)(1) (emphasis added). Thus, the plain language of the statute now empowers the Board to investigate charges before scheduling a hearing. Moreover, it is the settled law of this circuit that the...

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